Speech for the 8/23/11 Tokyo Rally

Good morning. My name is Tony Del Vecchio, and I’m a left-behind parent. I’m here today to continue my fight to be a part of my daughter Lili’s life again. Due to the sole custody system currently in place in Japan I lost all of my parental rights when my ex-wife and I became divorced. My daughter turned 13 this year, and from what I understand she is now in junior high school. The last time I saw her she was six years old and in kindergarten. And she only lives an hour away from me by train. Imagine that.

Under Japan’s legal system, precisely half of all parents involved in a divorce action lose all legal rights with respect to their children once the divorce becomes final. These parental rights, known in Japanese as “shin ken,” simply cannot be granted legally under the Japanese system to more than one parent. It’s not a question of wrongdoing on anybody’s part, or even considerations about what is in the best interests of the child. It’s just the law, and it’s just the way things are done here. With respect to the protection of human rights in general, and children’s rights in particular, Japan lags far behind the rest of the developed world. Its system of sole custody upon divorce runs contrary to common sense, sound psychological research, and international norms. People ask me how this could continue to be so in the 21st Century when it is so patently wrong, but I honestly never know how to answer to that question. It’s just the way it’s always been, and always will be, unless dedicated and determined folks like us stand up and do something to try to change Japan’s way of doing “business as usual.”

Fortunately, there are signs that things are finally beginning to change here in Japan, albeit slowly and haltingly. One positive development is Japan’s recent acquiescence to signing the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that provides for the repatriation of children abducted by parents across international borders back to what is termed their “place of habitual residence,” i.e., their original home country. The treaty provides a legal framework whereby children wrongfully removed from the place where they grew up and were accustomed to living can be returned home where they belong. The intent of the treaty is a recognition that matters related to divorce and custody are best handled in the location where the marriage and upbringing of the children took place, and that signatory countries are fully capable of handling such matters under their respective systems of law. Its goal is to put an end to unilateral decisions by one parent to deprive both the children born of the marriage and the other parent of the love and companionship of one another.

Although the treaty has been in existence for 30 years now, Japan has yet to put its signature on the document. To date, 85 countries have ratified the Hague Convention. Japan is the only G-7 country not to have done so yet, and as a direct result of this neglect, the country has earned a global reputation as a safe haven for kidnappers. In fact, the US State Department is not aware of a single case in which a child abducted to Japan has ever been returned to America. Currently they list 123 active cases involving 173 children who have been abducted from the United States to Japan. For years, Japan has been claiming that it was “studying the issue,” and that it was “considering joining the convention,” and so on and so forth. Finally, thanks to the concerted efforts of diplomats and members of foreign ministries of various nations around the world, some progress in regard to Japanese ratification seems to be taking place.

The United Sates, I’m proud to say, has been one of the nations leading the way in persuading Japan to do the right thing to sign on to this important international treaty, and to work towards establishing a legal system that protects the rights of children and their parents. Since John V. Roos took over in his position as American Ambassador to Japan, he has worked tirelessly to bring about a resolution on behalf of children and parents wrongfully denied access to one another under Japan’s antiquated and inequitable system of law, and I am deeply grateful for his efforts and for that of the Department of State toward that end. American left-behind parents have been assured by our government, both privately and through public press statements and Congressional testimony by high-ranking officials in the State Department including Assistant Secretary of State Kurt Campbell and Special Advisor for Children’s Issues Ambassador Susan Jacobs, that the joint issues of international parental child abduction and loss of access to one’s child upon domestic divorce here in Japan are being raised and vigorously pursued at every opportunity with officials in both Japan’s Ministry of Foreign Affairs and Ministry of Justice. Over the past year and a half Ambassador Roos has participated along with ambassadors and diplomats from a host of other nations in a putting forth a series of diplomatic initiatives, or “demarches,” to strongly urge Japan to get on board with the international consensus on children’s rights. The other individual nation participants include Australia, Canada, France, Italy, New Zealand, Spain, the United Kingdom, Belgium, Columbia, Hungary, and Germany, as well as the entire European Union collectively. The purpose of these initiatives has been to call upon Japan both to become a signatory to the Hague Convention and to work in earnest to reunite parents and children who have lost access to one another under Japan’s current system of divorce, a system in which children born of a marriage are in essence “awarded” to one parent over another, and in which the other parent loses all parental rights and typically all contact with his or her children just by being the unfortunate loser in Japan’s winner-take-all system of jurisprudence.

After the intense pressure over the past few years from the United States and the other nations I mentioned, Japan has finally capitulated and agreed to join the Hague Convention. This, as I said, is a very positive development for our cause, and should be welcomed by all, but it is necessary to maintain a high degree of skepticism about the intentions of the Japanese government and to exercise a sensible degree of caution going forward. There are a number of reasons why this is so.

First, in order to be in compliance with the Hague Convention, Japan will need to dramatically amend its current system of law by drafting domestic legislation that would permit it to apply the provisions of the Hague. In addition to actually drafting the legal language to comply with the Hague, Japan will have to grant powers to its courts to enforce those provisions, which powers at this point do not exist. Most troubling are reports in the Japanese media and elsewhere that Diet members working on the draft legislation are considering including a number of so-called “exceptions” to the Hague Convention which would essentially render the document meaningless from the perspective of compliance and enforcement. One of the main exceptions envisioned is one in which abducted children would not have to be returned to their home countries in cases where they would be exposed to a so-called “abusive environment.” Worryingly, only the say-so of the abducting Japanese parent would be required as evidence to determine that, in fact, an abusive environment exists at all in the child’s home country. It also ignores the fact that the Hague Convention already contains protections for children with respect to abuse under Article 13, and that foreign courts are just as competent as, if not more so than, Japanese courts in looking after the welfare of children in cases which come before them. To imply that only Japan is capable of looking after the welfare of children is arrogant in the extreme, and quite frankly insulting to the other advanced nations of the world with which Japan maintains friendly relations.

US Assistant Secretary of State for East Asian and Pacific Affairs Kurt Campbell spoke recently to the loopholes Japan has been discussing with respect to proposed Hague legislation. On July 28, he stated: “We will not rest until we see the kinds of changes that are necessary and we will certainly not abide by loopholes or other steps that will, frankly, somehow negate or water down the agreement.” In a later press conference he reiterated this point when he said: “We look to Japan to take the necessary steps to ensure its full compliance and commitment to the Hague Convention. We will continue to look for ways to ensure the Hague Convention, once ratified by Japan, becomes an effective tool to address these heart-wrenching cases. . . This issue remains a top priority for the [State] Department, [and we] are prepared to use all political and legal means necessary to facilitate contact and access for parents and abducted children.”

The second problem with rejoicing over Japan’s agreement to eventually sign on to the Hague Convention is that the treaty is not retroactive, and only applies to cases which occur after the signatory state ratifies the convention. Thus, an active case that would normally fall under the purview of the Hague Convention would not be covered. This issue could be resolved by Japan if the country would voluntarily draft legislation that would consider active cases as automatically falling under the provisions of the Hague Convention, i.e., make the treaty in effect retroactive, thus applying both the letter and the spirit of the treaty. After all, as a developed nation and a long-time beneficiary of membership in the global community through its lucrative export trade, Japan should have signed this document long ago.

The final issue with respect to the Hague Convention concerns nearly all left-behind parents who are citizens of or foreign residents of Japan, which is simply this: the Hague Convention doesn’t apply to us in any event, as in most cases our children were not abducted across international borders, but were instead lost to us through the Japanese court system. Under the Japanese system of law, joint custody does not exist, nor are there any provisions for enforceable visitation. In my own case, despite repeated requests over a period of years I have been unable to see my own flesh and blood, or even to have my government obtain a simple Health and Welfare Visit with my child, by virtue of the fact that my daughter’s mother simply refuses to permit either circumstance to take place.

In summary, while it may be true that Japan’s eventual ratification of the Hague Convention could produce at some point in the future an environment that is more child-friendly and thus more conducive to the protection of fundamental human rights, quite frankly nobody currently affected by Japan’s unfair and outdated child custody laws will stand to benefit in any way from this treaty. Pushing for the treaty is still the right thing to do for future generations of children and parents, but that doesn’t help those of us whose toddlers are turning into adolescents, whose adolescents are turning into teenagers, and even in some cases, whose teenagers are turning into young adults.

Japan must act immediately to deal with current cases in which children and their parents have been unfairly separated from one another, whether due to international parental child abduction or through rulings in its domestic court system. Time is running out for parents who are today left behind, and we want to see our children before they have children of their own.

The American Vice President Joe Biden is in town to continue to offer to our Japanese friends support following the terrible events of March 11. Secretary of State Hillary Clinton was here as well earlier this year to offer American support and encouragement. I am both proud and grateful that my country is taking such an active role in helping our Pacific neighbor recover from the tragic earthquake and tsunami it experienced, not to mention the ongoing efforts to bring the Fukushima Nuclear Power Plant under control. America has, since March 11, shown its loyalty to and exhibited its compassion for our long-time ally Japan. I applaud my government for being a dependable and trustworthy friend to Japan in its time of need.

I respectfully request only one thing: while Vice President Biden is assisting Japan in recovering from this humanitarian crisis, if the opportunity presents itself, would he kindly remind our Japanese friends of the other innocent victims of devastating forces beyond their control, that is, our poor suffering children, separated from their loving parents due to Japan’s outlier status among the global community of nations with respect to children’s rights, and through the system of law it has created that treats children like pieces of property to be awarded to one or another parent in a divorce proceeding without regard to the serious and long-term consequences of such actions.